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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kangwon Land, Inc. v. Bong Woo Chun (K.W.L. Inc)
Case No. D2003-0320
1. The Parties
The Complainant is Kangwon Land, Inc., of the Republic of Korea, represented by C&F Law Office of the Republic of Korea.
The Respondent is Bong Woo Chun (K.W.L. Inc), San Jose, V4N 4Z7 CR of Costa Rica.
2. The Domain Name and Registrar
The disputed domain name <kangwonland.com> (the "Domain Name") is registered with Network Solutions, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 24, 2003. On April 25, 2003, the Center transmitted by e-mail to Network Solutions, Inc., a request for registrar verification in connection with the Domain Name. On April 29, 2003, Network Solutions, Inc. transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel independently determines and agrees with the assessment of the Center that the Complaint is in formal compliance with the applicable requirements.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 30, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was May 20, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 26, 2003.
The Center appointed Dr. Bernhard F. Meyer-Hauser as the sole panelist in this matter, on June 12, 2003. The Panel found that it was properly constituted and submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On June 20, 2003, the Panel issued Procedural Order No. 1, ordering the Complainant to provide translations of Annexes 3, 5, 6, 7, 8, and 10 by June 27, 2003.
No further submissions were received by the Center or the Panel, as a consequence of which the Panel’s projected decision date was changed to July 4, 2003.
On June 26, 2003, the Complainant filed its submission of English translations, as required by Procedural Order No. 1, to the Center. The Panel finds said translations to be in line with Procedural Order No. 1.
4. Factual Background
The following facts appear from the Complaint and its Annexes which have not been contested by the Respondent.
The Complainant was established by the Korean National Government based on a Special Law for Development Support of Abandoned Mine Areas (enacted in 1995) in 1998. The Complainant is a public company governed by Korean law with 51 % of its capital in the hands of government agencies and local authorities while the rest is in private hands after a public offering in 1999.
The primary purpose of the Complainant' s business was and still is to enhance recovery of abandoned mining areas in the Republic of Korea. For that reason, the Complainant makes various contributions, inter alia, to national and regional finance by way of endowment funds.
The Complainant is the only casino in Korea with monopoly rights that allow Korean nationals to be admitted.
The Complainant owns numerous trade and service mark registrations in Korea for "KANGWONLAND" (in Korean and English) and "KANGWONLAND•CASINO&HOTEL" (in Korean and English) in words and words and figures (registration no. 45-00051980000, 45-00051960000, 45-00051940000, 41-00739880000, 41-00652320000, and 40-04976100000).
The Complainant furthermore is the owner of the domain name <kangwoncasino.com>, registered by Complainant on May 13, 1999.
The disputed domain name <kangwonland.com> was registered by the Respondent on September 13, 1998.
5. Parties’ Contentions
The Complainant contends that:
- the Domain Name is identical or confusingly similar to trademarks and service marks in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the Domain Name; and
- the Domain Name was registered and is being used in bad faith.
Additional respective contentions of the Complainant are included in the following discussions and findings.
The Respondent has been notified in accordance with paragraph 2(a) of the Rules, but failed to submit a response in accordance with the requirements under the Policy. Thus, Complainant's allegations are deemed to be uncontested.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
"(i) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith."
A. Identical or Confusingly Similar Domain Name
The Domain Name at issue is <kangwonland.com>. As set forth above, the non-rebutted evidence has shown that the Complainant is the holder of various registered trademarks and service marks, inter alia KANGWONLAND (in words). Quite obviously, the Domain Name is substantially identical to the name of the trademarks and service marks of the Complainant.
The Panel therefore holds that the Complainant has readily met the burden of proof as established by subparagraph (i) of the Policy's paragraph 4(a).
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, a Respondent may establish its rights or legitimate interests in the Domain Name, inter alia, by showing any of the following elements:
"(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trade mark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue."
Respondent failed to show any use of, or demonstrable preparations to use, the Domain Name in connection with a bona fide offering of goods or services. Furthermore, Respondent failed to submit any proof that he, as an individual, business, or other organization, has been commonly known by the Domain Name. Rather to the contrary, there are indications in the file that Respondent, by registering the Domain Name, had the intent to misleadingly divert consumers for commercial gain by registering an Internet domain with the trade name of Complainant, well-known particularly among Korean nationals.
Complainant asserts that Respondent has no business or any other connection or affiliation with Complainant. So, it must further be assumed that there is no legal and/or business relationship between the Respondent and the Complainant which could give Respondent any right, title or share in the denomination KANGWONLAND.
Hence, in the absence of any indications as to a legitimate interest of Respondent to use the Domain Name, the Panel finds the Complainant has fulfilled its burden of proof under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The third element to be established by the Complainant is that the Domain Name has been registered and used in bad faith.
Paragraph 4(b) states the following four (non-exclusive) circumstances which, if found to be present by the Panel, are deemed to provide evidence of bad faith in registering and using the Domain Name:
"(i) circumstances indicating that you [Respondent] have registered or you [Respondent] have acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to the Complainant who is the owner of the trade mark or service mark, or to a competitor of the Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Domain Name; or
(ii) you [Respondent] have registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding Domain Name, provided that you have engaged in a pattern of such conduct; or
(iii) you [Respondent] have registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or your location."
The Complainant alleges that Respondent registered and used the Domain Name in bad faith and with the intent of making commercial gain. This allegation is non-rebutted.
On the other hand, as the translations to the trademark and service mark registrations of Complainant show that Respondent's registration of the Domain Name was prior to any of the trademark or service mark registration applications of Complainant, the first of which were filed in 1999, whereas the Domain Name was registered in 1998.
The Panel is well aware that that this situation is not directly addressed by paragraph 4(b) of the Policy. Paragraph 4(b), however, is a non-exclusive enumeration of circumstances that may prove the existence of bad faith of the disputed domain name holder.
Considering the circumstances under which the Respondent registered the Domain Name - Kangwon Land, Inc. was established in June 1998, and Respondent registered the Domain Name in September of the same year -, the Panel comes to the conclusion that Respondent registered the Domain Name fully conscious of what "business" he could make out of mistakenly being affiliated with the Complainant. As a Korean national allegedly in the online casino business, Respondent must have known Complainant's reputation as a state-run casino, established by special law.
Thus, and in view of America Online, Inc. v. Bongwoo Chun, NAF Case No. 104974 (where the Respondent was found to having registered the domain name <casinoaol.com> in bad faith under similar circumstances), the Panel rules that the Respondent has pursued a bad faith activity under the Policy.
Incidentally, a visit of the disputed Domain Name web site on July 1, 2003, by the Panel showed that Respondent's web site is no longer in use. When clicking on "start game" a window shows with the words "under construction". In WIPO Case No. D2000-0003 (<telstra.org>), paragraphs 7.9 et seq., as well as in other WIPO decisions since, it was ascertained that a passive holding of a domain name may be sufficient to constitute bad faith, taking into consideration the overall context of the Respondent's behavior.
Therefore, the Panel concludes that the requirements of paragraph 4(a)(iii) of the Policy have been sufficiently made out by the Complainant and that the Respondent's bad faith registration and use of the Domain Name has been proven.
For all the foregoing reasons and facts discussed above, the Panelist decides that the disputed Domain Name is identical to the registered trade mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent's Domain Name has been registered and is being used in bad faith.
Therefore, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel requires the domain name <kangwonland.com> to be transferred to the Complainant.
Bernhard F. Meyer-Hauser
Dated: July 4, 2003